Michigan's
new constitutional amendment, sponsored by the Michigan Civil Rights Initiative,
bans discrimination by the state, for or against anyone, on specified bases, in
specified areas. The forbidden bases of discrimination are race, sex, color, ethnicity,
and national origin. The forbidden areas are public employment, public education,
and public contracting. Thus, the key provision: "The state shall not discriminate
against, or grant preferential treatment to, any individual or group on the basis
of race, sex, color, ethnicity, or national origin in the operation of public
employment, public education, and public contracting." [Emphasis added. The
amendment is here
in full.]

The
Michigan Constitution, adopted in 1963, had already banned discrimination based
on religion, race, color, or national origin. Its Article I is a declaration of
civil and political rights, in 25 sections. High on the list is a general right
to equal protection, paired with a specific right to nondiscrimination: "Section
2. No person shall be denied the equal protection of the laws; nor shall any person
be denied the enjoyment of his civil or political rights, or be discriminated
against in the exercise thereof, because of religion, race, color or national
origin. The legislature shall implement this section by appropriate legislation."
[Emphasis added. The four clauses in the constitution that address discrimination
are here.]

Notice
that the right to nondiscrimination in the Michigan constitution is the paramount
civil right, safeguarding all other civil and political rights. Persons shall
not be denied any civil or political right, because of their religion, race, color
or national origin. Moreover, they shall not be discriminated against, based on
these factors, as to how fully they may exercise their rights. As the terms are
used here, being denied a right would be like telling Rosa Parks, if she wanted
to ride a state-operated bus, that she was not allowed. Being discriminated against
in the exercise of a right would be like telling her she could ride, but only
in a back seat. However, since both the denial and the discrimination are degrees
of discrimination, it is simpler to speak of both as discrimination.

This
right to nondiscrimination, like all the rights protected by it, belongs to everyone.
In law, as well as in ethics, every right corresponds to a duty. If everyone has
the right not to be robbed, there must be a corresponding duty not to steal. If
everyone has the right not to be killed, there must be a corresponding duty not
to murder. The legal duty that corresponds to the legal right not to be discriminated
against is of course the legal duty not to discriminate, provided in Art I, §
2. But whose duty is that?

Constitutions
give duties primarily to the state: i.e., to the state's government and to other
state agencies. The duty not to discriminate, based on religion, race, color or
national origin, is here a legal obligation of the state. A state could discriminate
by enacting laws that do so, or in the conduct of government business. These and
any other ways that Michigan might discriminate, based on religion, race, color
or national origin, are summarily forbidden.

Thus,
both Art I, § 2 of the existing constitution, and the new amendment (Art I, §
26), ban discrimination by the state, based on race, color or national origin.
(The latter adds sex, and the former adds religion, as forbidden bases.) The scope
of the amendment's prohibition, however, is much narrower. It covers only public
employment, public education, and public contracting. In contrast, the nondiscrimination
provision in I : 2 presumably covers not only these areas, but all state
action, and all state legislation. Except for the addition of sex as a forbidden
basis, the amendment bans no more-but a lot less-than the Michigan constitution
had already banned.

Hence,
our puzzles. Why sponsor an amendment to add bans on racial and ethnic discrimination
that were already there? And, since the existing bans haven't blocked affirmative
action by the state, why do defenders of such programs fear the amendment?

When
describing the amendment, I omitted a phrase that occurs in it, but not in Art
I, § 2. The amendment's command not to discriminate against, based on race,
sex, color, ethnicity or national origin, is coupled with a command not to
grant preferential treatment on the same bases. Many people believe that this
second command would ban something (affirmative action?) that the first does not.
I think this belief is mistaken.

The mistake can easily be demonstrated. To
be proved: the command not to grant preferential treatment, based
on race, color, or national origin, bans nothing not already banned by the command
not to discriminate against, on these bases.

First,
let's define the two key terms. In Merriam-Webster's 10th Collegiate Dictionary
(1993), "discriminate" in this context means "to make a difference in treatment
or favor on a basis other than individual merit. ( . . . in favor of your friends)
(. . . against a certain nationality)." In the same dictionary, "preferential
treatment" is not listed, but "preference" in this context means "the act, fact,
or principle of giving advantages to some over others." These definitions are
essentially the same as those in Webster's 3rd International Dictionary Unabridged
(1961).

I
use these definitions as follows: To discriminate against people based on their
membership in some group is to treat them differently, disfavoring them, based
on that membership. To give preference to people based on their membership in
some group is to treat them differently, favoring them, based on that membership.

Now,
suppose the basis of favorable treatment were not race, but residence. It is common
practice for state universities to give preference to in-state applicants. Imagine,
however, that some state forbids its public colleges to discriminate against applicants
from other states. Would this ban on discrimination against non-state applicants,
by itself, ban any preference for in-state applicants? Or would an additional
ban, on the preference, be necessary?

Any
advantage granted to in-state applicants produces an equal disadvantage to non-state
applicants. This disadvantage is only relative: it doesn't lower the non-staters'
scores in the admissions competition. Nevertheless, the disadvantage is real.
The extra points for in-staters make it more likely that non-staters will lose.
The preference has the effect of placing the starting line of the admissions race
closer to the finish line for in-staters than for out-staters. Thus, the same
action that advantages some, necessarily disadvantage their competitors.

If,
instead of in-state residence, the basis of preference were service in the military,
the same logic would apply. Any advantage granted to applicants who are veterans
would produce an equal disadvantage to those who are not. The disadvantage would
be only relative; still, it would be real. There is no way that an advantage could
be given veterans, without disadvantaging the other applicants. (We assume here
that the admissions are competitive. If all applicants are accepted, an admissions
preference for any would be meaningless.)

Art
I, § 2 of the Michigan Constitution does not ban state discrimination against
non-state or non-veteran applicants to state schools. However, it does ban state
discrimination based on race, color, or national origin. Our question is, whether
adding a ban on preferential treatment, on the same bases, prohibits anything
not already prohibited by the discrimination ban. The answer will be No, by analogy
to the logic concerning unequal treatment for in-state vs. non-state, or veteran
vs. non-veteran, applicants.

Suppose
that applicants for employment in Michigan government jobs receive preference
if they are members of "underrepresented racial or ethnic minority groups." This
advantage is based on "race, color, or national origin." Any advantage so based,
whether tiny or huge, is clearly forbidden by the new amendment's ban on preferential
treatment. However, it is already forbidden by the ban on discrimination in Art
I, § 2, since any advantage granted to minority applicants places other applicants
at a corresponding disadvantage. By favoring (discriminating for) certain
minorities, it disfavors (discriminates against) everyone else. Since the
preferential treatment for applicants in the favored groups cannot exist without
discriminating against other applicants, based on their race, color, or national
origin, it was already prohibited by the ban on such discrimination in I : 2.
Therefore, the amendment's ban on preferential treatment, based on race, color,
or national origin, prohibits nothing that was not already prohibited by the constitution's
ban on discrimination. Q.E.D.

Was
this point addressed during the Michigan battle? So far as I know, neither side
argued that the nondiscrimination clause already in the Michigan Constitution
necessarily bans preferential treatment based on race, color or national origin.
On the contrary, both sides seemed to assume that-without the amendment-the constitution
would not block what MCRI called "preferential treatment," and what the opposition
called "affirmative action."

This
assumption was based largely on a Giant Fact: the racial preference revealed in
the University of Michigan admissions lawsuits, Gratz v Bollinger and Grutter
v Bollinger. The apparent depth and breadth of the unequal treatment of applicants,
based on their race or national origin, was spectacular. This is illustrated by
the racial admission rates for applicants with the same grades and test scores.
The examples given below are from tables comparing applicants at the 10th, 20th,
30th, 40th, 50th, 60th, 70th, 80th, and 90th percentiles, according to their grades
and test scores. (An applicant at the 10th percentile was behind 90% of all applicants;
at the 20th percentile, behind 80%, and so on.)

In
the undergraduate college, the probability of admission for Black applicants,
whose high school grades and SAT scores placed them at the 10th percentile of
all applicants, was 88%. The admission probability for White applicants at the
same percentile was 4%. At the 30th percentile, the Black applicants' probability
of admission was 99%; the Whites' probability, 45%. Not until the 80th percentile
did White applicants have a 99% probability of admission. [The full table is here.]

Law
school admissions being more selective, the differences in treatment were even
greater. The racially or ethnically Favored applicants were African-, Mexican-,
Puerto Rican-, and Native-Americans. The Unfavored were Caucasian-, Asian-, and
other Hispanic-Americans, plus Foreign and Ethnically-Unidentified applicants.
The rate of admission for the Favored, whose college grades and LSAT scores placed
them at the 30th percentile of all applicants, was 83%. The admission rate for
the Unfavored applicants at the same percentile was 1%. At the 50th percentile,
the admission rate for the Favored was 100%, compared to 5% for the Unfavored.
The table's highest rate of admission for Unfavored applicants was 95%, at the
90th percentile. [The full table is here.]

These
statistics are powerful evidence, though not conclusive proof, of favorable treatment
based on race, color, or national origin. In neither the college nor the law school
were grades and test scores the only bases of admission. It is theoretically possible
that superiority in meeting other admission criteria overwhelmed the disadvantage
resulting from lower grades and test scores. However, the university never denied
that race or ethnicity was a factor in its admission decisions. The question,
in the admissions lawsuits, was not whether U-M was using race and ethnicity,
but whether their use violated the equal protection clause of the U.S. Constitution,
which does not explicitly ban such discrimination.

For
us, the very different question is: In a state university, how can such
discrimination flourish, when it is explicitly forbidden by the state's constitution?
The civil right recognized in Art I , § 2, not to be discriminated against, based
on religion, race, color, or national origin, belongs equally to everyone. If
U-M had used race to favor White applicants over Black, no one would deny it to
be racial discrimination, clearly forbidden by the Michigan constitution. But
if the nondiscrimination clause would ban the use of race to favor White applicants
over Black, how can it not ban the use of race to favor Black applicants
over White? Is the nondiscrimination clause a one-way street? Does it create one
law in Michigan's constitution for Blacks, and another for Whites? That would
enshrine racial discrimination at the heart of the constitution, in the very clause
that purports to prohibit racial discrimination!

We
have no reason to believe that the state's use of race to favor "underrepresented
minorities" is limited to the University of Michigan. However widespread this
usage, it would raise in every case the same question: How could this happen,
in the face of Art I, § 2?

One
method would be judicial interpretation. Did the Michigan Supreme Court simply
decide that the command in Art I, § 2 not to discriminate based on religion, race,
color, or national origin was not meant to bar preference for minorities? The
U.S. Supreme Court took such a step in a famous case, United Steelworkers v.
Weber, (1979). In that case, the Court was interpreting a federal statute
rather than the U.S. constitution. The Court held that the commands in Title VII
of the U.S. Civil Rights Act not to discriminate based on race, color, religion,
sex or national origin were not meant to bar preference on these bases for minorities.
[The opinion of the Court by Justice Brennan is here,
and the dissent by Justice Rehnquist is here.]
If the illogic of this conclusion failed to inhibit the nation's highest court,
it could also fail in a state court. Be that as it may, no such decision has occurred
in Michigan.

How,
then, did Michigan get from its constitutional principle to its discriminatory
practice? The road leads first to key provisions in Michigan's Civil Rights Act.
Most of these provisions ban discrimination, but some empower Michigan's Civil
Rights Commission to waive the bans. We then check how the Michigan courts have
dealt with this tension. This will be enough, I believe, for a plausible, short
answer to how Michigan got from there to here. A virtue of this answer is that
it will explain why it made sense for the amendment to ban racial and ethnic preference,
even though these were already banned by the constitution. Also, it will explain
why it made sense for practitioners of affirmative action to fear the new discrimination
ban, even though the old one had not stood in their way.

The
constitution's Art I, § 2 concludes with: "The legislature shall implement
this section by appropriate legislation." This mandate has been carried out
chiefly byMichigan's Civil Rights Act, initially adopted in 1976, but often amended
since. Directly pertinent to U-M's racial admissions policies is the Act's fourth
Article, concerning educational institutions (both public and private). According
to Art IV, § 402, they must not:

(a)
Discriminate against an individual in the full utilization of or benefit
from the institution, or the services, activities, or programs provided by the
institution because of religion, race, color, national origin, or sex.
[Italic emphases added in clauses (a) - (e).]

(b)
Exclude, expel, limit, or otherwise discriminate against an individual seeking
admission as a student or an individual enrolled as a student in the terms,
conditions, or privileges of the institution, because of religion, race, color,
national origin, or sex.

(c)
For purposes of admission only, make or use a written or oral inquiry or form
of application that elicits or attempts to elicit information concerning the religion,
race, color, national origin, age, sex, or marital status of a person, except
as permitted by rule of the commission or as required by federal law, rule, or
regulation, or pursuant to an affirmative action program.

(d)
Print or publish or cause to be printed or published a catalog, notice, or advertisement
indicating a preference, limitation, specification, or discrimination based
on the religion, race, color, national origin, or sex of an applicant for
admission to the educational institution.

(e)
Announce or follow a policy of denial or limitation through a quota or otherwise
of educational opportunities of a group or its members because of religion, race,
color, national origin, or sex.

These
statutory bans on racial and ethnic discrimination are as uncompromising as the
constitutional ban in Art I, § 2. U-M's admissions policies breached Clause (b)
by discriminating against applicants on the forbidden bases, and Clause (e) by
limiting the number of white and Asian acceptances in order to obtain a "critical
mass" of "underrepresented minorities." Clause (a) was probably breached by race-based
financial and tutoring assistance. Clause (d) was surely breached by public notices
advertising "diversity," "equal opportunity," or "affirmative action," all "indicating
a preference, limitation, specification, or discrimination based on . . . race,
color, national origin. . ."

The
foes of the MCRI amendment maintained it had no right to be called a "civil rights"
amendment. Yet its bans on discrimination are obviously quite similar to the bans
long present in Michigan's Constitution, and in § 402 of Michigan's Civil Rights
Act. The opposition also claimed that the amendment's ban on preference would
destroy civil rights. Yet the Act, in § 402 (d), treats "preference" and "discrimination"
as synonyms, banning both.

Sec.
402 (c) bans schools from trying to find out the racial or ethnic identity of
their applicants. Here, the non-discrimination principle is strengthened by requiring
colorblindness. But a counter-tendency appears, for the first and only time in
Art IV. Schools may elicit racial identity: if the feds require it, the
Michigan Civil Rights Commission permits it, or pursuant to an affirmative action
plan. Notice, however, that these exceptions reach only the prohibition in Clause
(c). They are not stated as exceptions to the prohibitions in Clauses (a), (b),
(d), and (e). As written, § 402 of the Civil Rights Act seems every bit as hostile
to U-M's racial admissions policies, as does Art I, § 2 of the Michigan Constitution.

The
litigation in Gratz and Grutter addressed the use of race in U-M's
student admissions only, but no one would be surprised to find it also in faculty
hiring. Racial discrimination in faculty hiring at any public college is forbidden
by both the new amendment and the previous constitution. The Article on Employment
in Michigan's Civil Rights Act starts out as categorical as the constitution,
but later introduces an important exception. First, it declares (Art II, § 202):

(1)
An employer shall not do any of the following: (a) Fail or refuse to hire or
recruit, discharge, or otherwise discriminate against an individual with respect
to employment, compensation, or a term, condition, or privilege of employment,
because of religion, race, color, national origin, age, sex, height, weight, or
marital status. (b) Limit, segregate, or classify an employee or applicant
for employment in a way that deprives or tends to deprive the employee or
applicant of an employment opportunity, or otherwise adversely affects the status
of an employee or applicant because of religion, race, color, national origin,
age, sex, height, weight, or marital status. [Emphases added]

(1).
An employer, labor organization, or employment agency shall not print,
circulate, post, mail, or otherwise cause to be published a statement, advertisement,
notice, or sign relating to employment by the employer, or relating to membership
in or a classification or referral for employment by the labor organization, or
relating to a classification or referral for employment by the employment agency,
which indicates a preference, limitation, specification, or discrimination,
based on religion, race, color, national origin, age, sex, height, weight,
or marital status. [Emphases added.]

The exception arrives in § 210:

A
person subject to this article may adopt and carry out a plan to eliminate
present effects of past discriminatory practices or assure equal opportunity with
respect to religion, race, color, national origin, or sex if the plan is filed
with the commission under rules of the commission and the commission approves
the plan. [Emphasis added. In Article V, banning discrimination in Housing, §
507 repeats this language exactly.]

Unlike
the exception in § 402 (c) above, which applies to a single clause, § 210 applies
to an entire article. I read § 210 as an exception. It is generally treated so,
as a waiver to the article's bans on discrimination in employment. But where is
the language that would justify this interpretation? Nowhere does 210 state that
the plans adopted by employers, employment agencies or labor unions "to eliminate
present effects of past discriminatory practices" or to "assure equal opportunity
with respect to religion, race, color, national origin, or sex" may include discrimination
or preference on these bases.

Both
these goals may be pursued by means that do not discriminate. It depends on how
the goals are defined. For example, if the first goal were defined as compensation
to a worker for having been discriminated against by an employer, the compensation
would be based on the employer's wrong, not on the worker's race. Making sure
that such compensation occurs would remove the present effect of a past discriminatory
practice. Since this action would not discriminate, it would require no waiver
of the article's nondiscrimination rules. Likewise, if the second goal were defined
as an equal chance of employment for equally qualified workers, no matter what
their "religion, race, color, national origin, or sex," the goal would require
obeying the article's nondiscrimination commands, not waiving them.

Nevertheless,
these two goals are commonly defined by advocates of affirmative action in ways
that do require discrimination as a means. The "present effects of past discriminatory
practices" are held to mean the lacks in individual ability, education and experience,
which help to cause the underrepresentation of racial, ethnic, or sexual groups
in employment. And "equal opportunity" is thought to require proportional representation
of racial, ethnic and sexual groups in employment. To move from underrepresentation
to proportional representation, the nondiscrimination commands of Art II must
often be waived.

Near
the end of the Michigan Civil Rights Act, there is a clause that sounds somewhat
like §§ 210 and 507, but applies to the whole Act. It reads:

§
705 (2). This act shall not be interpreted as restricting the implementation of
approved plans, programs, or services to eliminate discrimination and the effects
thereof when appropriate.

This clause seems to extend the exceptions in §§ 210 and 507 to the whole Civil
Rights Act. If so, the wording is clumsy. It refers to "plans, programs, or services"
that "eliminate" both "discrimination and the effects thereof." But most plans,
programs or services do only one or the other. They eliminate discrimination by
obeying the Act's discrimination bans, or they are officially permitted to disregard
these bans in order to eliminate the effects of past discrimination. A plan, program,
or service that attempted both would contradict itself: ending discrimination
with one hand, while imposing it with the other. This contradiction created by
the clause would have been avoided if "discrimination" were followed by "or" instead
of "and."

One
function of the courts, when interpreting legislation, is to define ambiguous
terms. Have Michigan's courts defined the ambiguous terms in the Act's sections
that seem to waive its bans on discrimination? Specifically, have they defined,
in §§ 210 and 507, "present effects of past discriminatory practices" and/or "equal
opportunity with respect to religion, race, color, national origin, or sex"? Have
they wrestled with the apparent contradiction in § 705?

A
quick answer to these questions is provided by Michigan Compiled Laws Annotated,
available in paper or digital form in law libraries. This reference work quotes
and summarizes judicial comments on and interpretations of clauses in Michigan's
constitution and statutes. Unfortunately, a search of MCLA's Notes on Decisions
concerning §§ 210, 507, and 705 yields no judicial discussion of their ambiguities
or contradictions, let alone any attempt to define their key terms.

However,
the Notes do point to two important Michigan Supreme Court cases applying § 210
- Victorson v. Dept of the Treasury (1992) and Sharp v. City of Lansing
(2001). The opinions in these cases give some indication of the attitudes in Michigan's
executive and judicial branches concerning the legality of state affirmative action
plans that discriminate in favor of minorities or women.

In
Victorson, the issue was whether the Treasury Department's affirmative action
plan was illegal under § 210, not because it allowed discrimination, but because
it had not been approved by the Civil Rights Commission. The Court held, four
justices to three, that the plan was legal, if (1) it served the purposes of Michigan's
Civil Rights Act, (2) did not unnecessarily trammel the interests of nonminorities,
and (3) was temporary in nature. The U.S. Supreme Court's decision in United
Steelworkers v. Weber (noted a few paragraphs above) is cited as authority
for these three criteria. The dissent had no objection to the contents of the
plan, but found it illegal simply because the Commission had not approved it.

As
summarized by the Court, the plan included yearly, statewide goals and progress,
for the Treasury Department's hiring of women, blacks and Hispanics, in various
specialties at various levels of competency. Based on test scores, applicants
were rated as "qualified" or " highly qualified." The latter rating was required
for promotion. If fewer than three applicants scored as "highly qualified," a
"qualified" woman or minority could be moved into the higher group. In the Court's
description of the plan, there is no statement that discrimination occurred or
was authorized. However, both the Opinion and the Dissent assume that, without
the protection of § 210, the plan would be vulnerable to a charge of discrimination.

The
Court cites executive rulings by Gov. Milliken (1970s), and Gov. Blanchard (1980s),
to show that both men: (1) were concerned over "the dearth of minority and female
representation in state employment," and (2) believed that "affirmative action
was the primary means for achieving equal opportunity" in state employment. The
Opinion notes also that the plan at issue in this case, though not endorsed by
the Civil Rights Commission, had been approved by the Equal Employment Opportunity
Council, which consisted of (no less than) the Governor, the Directors of the
Departments of Civil Rights, Management and Budget, and Civil Service, and the
Attorney General.

Reading
this case, one has the impression that the majority and minority on the Court,
the executive as represented by directives and policy, and the legislature as
represented by § 210, were united in support of state affirmative action in employment.
In their minds, what had become of the principle that discrimination based on
religion, race, color or national origin is unjust, no matter who is targeted?

The
Victorson Court states as "the purpose of civil rights legislation" a dictum
of the Michigan Supreme Court in Miller v. C. A. Muer Corp (1984): "Civil
rights acts seek to prevent discrimination against a person because of stereotyped
impressions about the characteristics of a class to which the person belongs.
The Michigan civil rights act is aimed at "the prejudices and biases" borne against
persons because of their membership in a certain class, [citations omitted] and
seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices,
and biases." This view harmonizes with the widespread governmental support of
affirmative action indicated by the Court.

If to end discrimination when motivated by hostile prejudice were the sole purpose
of civil rights laws, it would make sense to allow discrimination when motivated
by a friendly desire to help. But the anti-discrimination clauses of the Michigan
constitution and the Michigan Civil Rights Act do not confine their bans to discrimination
motivated by prejudice. They sound as if their enactors believed that discrimination
on such bases as religion, race, color and national origin is harmful to its victims
and to society, whether motivated by prejudice or not.

The
second Michigan Supreme Court case concerning § 210 is Sharp v. City of Lansing
(2001). By a vote of six to one, the Court held that § 210 completely shields
a public employer's approved affirmative action plan from liability under the
state Civil Rights Act, but not under Art I, § 2 of the state constitution. By
this decision, the white, male plaintiff was allowed to pursue his complaint of
reverse discrimination, based on race and sex, by the Lansing fire department.
If successful, his remedy would be an injunction ending the discriminatory practice.
The other remedies for violations of the statute (monetary damages and attorney's
fees) would not be available for a constitutional violation.

According
to the Sharp majority, even though a city affirmative action plan has been
approved by the Civil Rights Commission under § 210, the courts may review whether
discriminatory actions under the plan nevertheless violate Art I, § 2 of the constitution.
A plaintiff need not challenge § 210 itself as unconstitutional. The Court argues
that "[t]he unsettling position of the dissent is that, if the state actor commits
ongoing employment discrimination that violates the state Equal Protection Clause,
without also violating the CRA, the courts, when petitioned by the employee, have
no ability to put an end to the unconstitutional discrimination. . . . [I]t is
axiomatic that the Legislature cannot grant a license to state and local governmental
actors to violate the Michigan Constitution."

In
Sharp, the Michigan Supreme Court was apparently in uncharted territory.
From Victorson, we learn that affirmative action plans favoring women and
minorities had been promoted by the Michigan government since the early 1970s.
Sec. 210, permitting such plans, had been state law since 1976. Yet, as of 2001,
there had been no Court decision that any state affirmative action plan, and/or
any application of §§ 210, 507, or 705 was unconstitutional. Indeed, there is
no indication, in this case or in the Michigan Compiled Laws Annotated,
that these issues had ever been argued before this Court. From this it would be
reasonable to conclude not only that Michigan's establishment was comfortable
with discrimination favoring minorities and women, but also that the opposition
to it, however widespread, was not assertive.

If
this account of the pertinent legislative and judicial actions is correct, we
have a short answer to the question of how Michigan got from its nondiscrimination
principles to its discriminatory practice. First came a constitutional provision
highlighting an explicit ban on discrimination based on religion, race, color
or national origin. This was then implemented by the Civil Rights Act. It barred
discrimination on these and other bases including sex, in education, employment,
housing and public accommodations. However, these bans were subject under §§ 210,
507, or 705 to overrides approved by the Civil Rights Commission, if used "to
eliminate effects of past discrimination" or to "secure equal opportunity."

As
a result, the civil right of minorities and women not to be discriminated against
remained strong, both in law and in practice. But the civil rights of whites and
men not to be discriminated against were greatly weakened. They had to make room
for the new rights to discriminate in behalf of minorities and women, which were
exercised by waiver of the nondiscrimination laws. These new rights were not in
written form. They were not spelled out in statutes or regulations or administrative
rules. They were nowhere available for the public to read. They existed in the
minds of the eight officials who comprised the Michigan Civil Rights Commission.

Sections
210 and 507 clearly permitted plans that remedied the effects of past discrimination,
and assured equal opportunity. But what qualifies as an effect of past discrimination?
What is meant by equal opportunity? The answers to these questions are not available,
for public understanding, comment or correction. They exist in the minds of the
Commissioners. On these issues of tremendous civic and moral import, Michigan
has been governed, not by laws, but by a handful of men and women.

Not
long after the Michigan Civil Rights Initiative was first announced, it was fiercely
attacked by the Michigan Civil Rights Commission. The chairman of the Commission
declared "The Michigan Civil Rights Initiative is a shameful attempt to confuse
and manipulate unsuspecting Michigan voters. Ward Connelly's [sic] initiative
is to civil rights what an ax is to a tree."

If,
by "civil rights," you mean the rights not
to be discriminated against that are proclaimed in Michigan's constitution and
Civil Rights Act, the Civil Rights Initiative is not a destroyer but an added
protector. However, if you mean by "civil rights" the right to discriminate in
behalf of minorities and women, the MCRI is indeed an ax, though not deployed
as broadly as Art I, § 2 of the Constitution. The new amendment leaves this right,
whether exercised by the state or by private parties, untouched outside of public
employment, public education and public contracting. Imagine the devastation that
might have been wrought if the Initiative had instead amended the Civil Rights
Act, by deleting the sections that override its commands not to discriminate.
(In Michigan, ballot initiatives are allowed to enact statutes, as well as constitutional
provisions.) Finally, if what you mean by "civil rights" is the power of the eight
Commissioners to decide that certain people lack the right not to be discriminated
against, based on religion, race, color, national origin or sex, while others
have the right to be discriminated for on these bases, the MCRI is indeed an ax,
or at least a hatchet.

We
can now answer the two puzzles:

1. Why sponsor an amendment to add bans on racial and ethnic discrimination
that were already there? Although such discrimination by the state was already
explicitly forbidden, in both Michigan's Constitution and Civil Rights Act, the
latter permitted these bans to be easily waived, and the former had yet to produce
an injunction against affirmative action. The right of minorities not to be discriminated
against was robust, but the corresponding right of whites was discounted, displaced
by a right of minorities to be discriminated for. The amendment revived public
support for the view that the right not to be discriminated against, based on
race, ethnicity, or sex, belongs to everyone.

2.
Since the existing bans haven't blocked affirmative action, why did defenders
of such action fear the amendment? The amendment describes what it bans, honestly
and precisely, as discrimination and preference based on race or sex. We have
known for decades, that when such discrimination hides behind the name, affirmative
action, a majority of Americans accept it, but when exposed as discrimination
or preference, a majority reject it. The MCRI forced the supporters of affirmative
action to drop the disguise. Although the amendment simply forbids discrimination
and preference, based on race or sex, the opposition insisted that this would
prohibit affirmative action. They thus confessed that what they supported as "affirmative
action" requires discrimination and/or preference, based on race or sex. This
confession helped the amendment to win. Both the confession and the victory have
unsettled Michigan's affirmative action regime, which had lasted more than thirty
years. The power to produce these results was ample reason for defenders of affirmative
action to fear the amendment.